END USER LICENSE AGREEMENT
mbX Software, related software components, plugins, and accompanying models and documentation ("Software Product") is licensed and not sold. This Software Product is protected by copyright laws and treaties, as well as laws and treaties related to other forms of intellectual property. System Strategy, Inc. or its subsidiaries, affiliates, and suppliers (collectively "SSI") own intellectual property rights in the Software Product. The Licensee's ("you" or "your" or "user") license to download, use, copy, or change the Software Product is subject to these rights and to all the terms and conditions of this End User License Agreement ("Agreement"). Definitions of Capitalized words are provided throughout this document and within Exhibit A the Agreement.
YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS OF THIS END USER LICENSE AGREEMENT (EULA) BY SELECTING THE "I ACCEPT THE LICENSE AGREEMENT" OPTION AND DOWNLOADING THE SOFTWARE PRODUCT OR BY INSTALLING, USING, OR COPYING THE SOFTWARE PRODUCT. YOU MUST AGREE TO ALL OF THE TERMS OF THIS AGREEMENT BEFORE YOU WILL BE ALLOWED TO USE THE SOFTWARE PRODUCT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THE COMPANY OR OTHER LEGAL ENTITY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU MUST NOT INSTALL, USE, OR COPY THE SOFTWARE PRODUCT.
This Agreement entitles you to install and use one License Seat of the Software Product for each license key provided. In addition, you may make one archival copy of the Software Product. This Agreement does not permit the installation or use of multiple copies of the Software Product, or the installation of the Software Product on more than one computer at any given time. It also does not permit use on a system that allows shared use of applications, on a multi-user network, or on any configuration or system of computers that allows multiple users. Multiple copy use or installation is only allowed if you obtain an appropriate license key and seat for each user and each copy of the Software Product.
Restrictions on Transfer. Without first obtaining the express written consent of SSI, you may not assign your rights and obligations under this Agreement or redistribute, encumber, sell, rent, lease, sublicense or otherwise transfer your rights to the Software Product.
Restrictions on Use. You may not use, copy, or install the Software Product on any system with more than one computer, or permit the use, copying, or installation of the Software Product by more than one user or on more than one computer. If you hold multiple, validly licensed copies, you may not use, copy, or install the Software Product on any system with more than the number of computers permitted by license, or permit the use, copying, or installation by more users, or on more computers than the number permitted by license. You may not decompile, "reverse-engineer," disassemble, or otherwise attempt to derive the source code for the Software Product. You may not use the database portion of the Software Product in connection with any software other than the Software Product.
Restrictions on Alteration. You may not modify the Software Product or create any derivative work of the Software Product or its accompanying documentation. Derivative works include but are not limited to translations. You may not alter any files or libraries in any portion of the Software Product. You may not reproduce the database portion or create any tables or reports relating to the database portion.
Restrictions on Copying. You may not copy any part of the Software Product except to the extent that licensed use inherently demands the creation of a temporary copy stored in computer memory and not permanently affixed on storage medium. You may make one archival copy.
For the purposes of this Agreement, the source code of the Software Product will be deemed to be SSI's Intellectual Property and Confidential Information, regardless of whether it is marked as such. In the event that you make suggestions, improvements or modifications to SSI regarding new features, functionality or performance that SSI adopts for the Software Product or any of its other products or services, such new features, functionality or performance shall be deemed to be automatically assigned under this EULA to SSI.
Except as specified explicitly to the contrary in a SOW for Professional Services engagement, SSI shall retain any and all rights to ideas, inventions, developments and/or designs which result in a change to or customization of the licensed Software Product conceived or developed by it in connection with its performance of the Professional Services. Performance of the Professional Services pursuant to this Agreement shall not create any rights in or licenses to Licensee with respect to the licensed Software Product or any patents, trademarks, trade secrets, and/or other intellectual property rights of a Service Provider, except those explicitly set forth in this Agreement.
The Software Product may include links that will take you to websites not operated by SSI. These links are available as a convenience and for informational purposes and do not constitute or imply an endorsement or recommendation. You agree that SSI is not responsible for the availability or contents of any website not operated by SSI. SSI makes no representation, warranty, or other commitment of any kind regarding third-party materials. SSI shall, to the maximum extent permitted by law, have no liability associated with the use of Third Party Materials.
SSI shall not be obligated to provide maintenance and support services for the Software Product, but may elect to provide updates and releases to you at its sole discretion. You may submit change requests to the Software Product by submitting a ticket on the SSI website. SSI makes no warranty that submitted change requests will be implemented.
User Registration and Information
Prior to using the Software Product, you are required to register with SSI and provide certain information. You consent to allow SSI to contact you regarding its products and services for the term of your License Seat. In order to improve the Software Product and your experience with mbX, SSI requests that you submit change requests and feedback through SSI's website and ticketing process at www.systemxi.com.
Unless otherwise agreed to by you and SSI, during the term of the provided license, SSI may disclose your organization name as a user of mbX and/or subscriber to the related services to current and prospective clients, and you hereby grant SSI the right to display related names and logos to these clients. SSI may not use your information, name or logos, in marketing materials and on SSI's public website, without permission. In any case, use shall be in accordance with any branding guidelines you may provide to SSI.
Disclaimer of Warranties and Limitation of Liability
UNLESS OTHERWISE EXPLICITLY AGREED TO IN WRITING BY SSI, SSI MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, IN FACT, OR IN LAW, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OTHER THAN AS SET FORTH IN THIS AGREEMENT.
SSI makes no warranty that the Software Product will meet your requirements or operate under your specific conditions of use. SSI makes no warranty that operation of the Software Product will be secure, error free, or free from interruption. YOU MUST DETERMINE WHETHER THE SOFTWARE PRODUCT SUFFICIENTLY MEETS YOUR REQUIREMENTS FOR SECURITY AND UNINTERRUPTABILITY. YOU BEAR SOLE RESPONSIBILITY AND ALL LIABILITY FOR ANY LOSS INCURRED DUE TO FAILURE OF THE SOFTWARE PRODUCT TO MEET YOUR REQUIREMENTS. SSI WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE FOR THE LOSS OF DATA ON ANY COMPUTER OR INFORMATION STORAGE DEVICE.
UNDER NO CIRCUMSTANCES SHALL SSI, ITS DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE TO YOU OR ANY OTHER PARTY FOR INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING LOST REVENUES OR PROFITS OR LOSS OF BUSINESS) RESULTING FROM THIS AGREEMENT, OR FROM THE FURNISHING, PERFORMANCE, INSTALLATION, OR USE OF THE SOFTWARE PRODUCT, WHETHER DUE TO A BREACH OF CONTRACT, BREACH OF WARRANTY, OR THE NEGLIGENCE OF SSI OR ANY OTHER PARTY, EVEN IF SSI IS ADVISED BEFOREHAND OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT THAT THE APPLICABLE JURISDICTION LIMITS SSI'S ABILITY TO DISCLAIM ANY IMPLIED WARRANTIES, THIS DISCLAIMER SHALL BE EFFECTIVE TO THE MAXIMUM EXTENT PERMITTED.
Limitation of Remedies and Damages
Your remedy for a breach of this Agreement is the correction or replacement of the Software Product. The selection of whether to correct or replace shall be solely at the discretion of SSI. SSI reserves the right to substitute a functionally equivalent copy of the Software Product as a replacement or not. No warranty is included in this Agreement. You agree to indemnify and hold SSI harmless from all claims, judgments, liabilities, expenses, or costs arising from your breach of this Agreement and/or acts or omissions.
Governing Law and Jurisdiction. This Agreement is governed by the laws of Michigan, without regard to Michigan's conflict or choice of law provisions.
Government Users. The Products and Documentation were developed solely with private funds and are considered "Commercial Computer Software" and "Commercial Computer Software Documentation" as described in Federal Acquisition Regulations 12.212 and 27.405-3, and Defense Federal Acquisition Regulation Supplement 227.7202-3. The Products are licensed to the United States Government end-user as restricted computer software and limited rights data. No technical data or computer software is developed under this Agreement. Any use, disclosure, modification, distribution, or reproduction of the Software Product by the United States Government or its contractors is subject to the restrictions set forth in this Agreement. All other use is prohibited.
U.S. Government Rights. If the user is a unit or agency of the United States Government, User agrees that the Software Product is "Commercial computer software" or "commercial computer software" or "commercial computer software documentation" and that, absent a written agreement to the contrary, the United States Government's rights with respect to such Software or Documentation are limited by the terms specified in this EULA, pursuant to FAR 12.212(a) and/or DFARS 227.7202-1(a), as applicable. The Software has been developed exclusively at private expense and has been available for license by members of the public.
Force Majeure. SSI will not be held liable for not performing any obligation under this Agreement due to extraordinary causes beyond its reasonable control, including acts of God, natural disasters, strikes, acts of war, epidemics, or network and communications failures.
Independent Contractors. The Parties are each independent contractors with respect to the subject matter of this Agreement. Nothing contained in this Agreement will be deemed or construed in any manner to create a legal association, partnership, joint venture, employment, agency, fiduciary, or other similar relationship between the Parties, and neither Party can bind the other contractually.
Entire Agreement. This Agreement constitutes the entire Agreement and understanding of the Parties with respect to its subject matter and supersedes all prior or contemporaneous understandings and agreements, whether oral or written, between the Parties with respect to its subject matter. The terms of any other agreement that contains terms that are different from, in conflict with, or in addition to the terms of this Agreement, will be void and of no effect.
Amendments. Order of Precedence. SSI reserves the right to amend this Agreement at any time and will update the terms and conditions of this Agreement in the event of any such amendments. Changes to this Agreement will become effective upon the end of your then-current License Term. This Agreement and any addenda, must control and no modification, change, or amendment of this Agreement will be binding upon the Parties or supersede the terms of this Agreement unless it is in writing, and is duly signed by each Party's authorized representative.
Severability. If any provision of this Agreement shall be held to be invalid or unenforceable, the remainder of this Agreement shall remain in full force and effect. To the extent any express or implied restrictions are not permitted by applicable laws, these express or implied restrictions shall remain in force and effect to the maximum extent permitted by such applicable laws.
"Confidential Information" means all non-public information disclosed by either Party to the other, in writing, orally, or by other means, designated as confidential or that a Party knows or reasonably should know, under the circumstances surrounding the disclosure and the nature of the information, is confidential to the disclosing Party.
"Documentation" means any manuals, documentation, and other supporting materials related to the Software that SSI provides or makes available to Customer. Documentation is considered part of the Software
"License" means a data file used by the Software's access control mechanism that allows you to install, operate, and use the Software during the License Term.
"License Effective Date" is the date that the License Key was sent to you.
"License Key" is the means by which a License verified. License keys are provided after the mbX registration process and Agreement with this EULA.
License Seat. Is one registered and verified installation of mbX. Only one person may be associated with an assigned mbX license key and license seat. Each mbX technology (mbX, Sys>Graph, Proj>act, and others) requires a unique license key. If you need more Seats, you must submit a new request through SSI's website for the associated License Key(s)
"License Term" means the period from the License Effective Date to the License Expiration Date. If you would like to renew your license before it expires, please make the request to , and SSI will generate a new License Key and Expiration Date to allow continued use of the Software.
"Professional Services" means educational services, training, consulting, or project based services that SSI provides in accordance with a mutually executed Statement of Work. Services do not include mbX Support.
"Statement of Work" (SOW) means a mutually executed statement of work detailing the Services, tasks and deliverables SSI will perform or provide, and each Party's related obligations.
"Update" or "Release" means a Software release that SSI makes generally available to its customers, along with any corresponding changes to documentation. An "Update" specifically refers to an error correction, bug fix, generally indicated by a change in the digit to the right of the second decimal point (e.g., x.x.x to x.x.y). A "Release" specifically refers to an enhancement, new feature, or new functionality, generally indicated by a change in the digit to the right of the first decimal point (e.g., x.x.x to x.y.x) or to the left of the first decimal point (e.g., x.x.x to y.x.x).
"User" means a single person or machine account that uses the Software or interacts with the Software Product in the performance of its functions. The number of Users shall not exceed the number of License Seats provided.
"You" means the individual or entity exercising the Licensed Rights under this Public License. Your has a corresponding meaning.
*Significant portions of section adopted from “Github Enterprise License Agreement.” - GitHub Enterprise, Microsoft, enterprise.github.com/license.